United States District Court, W.D. Washington, Tacoma
YOLANDA MCGRAW, individually, and as the representative of all persons similarly situated, Plaintiff,
GEICO GENERAL INSURANCE COMPANY, Defendant.
AMENDED ORDER GRANTING PLAINTIFF'S MOTION TO
REMAND AND DENYING PLAINTIFF'S MOTION TO STRIKE AS
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Plaintiff Yolanda
McGraw's (“McGraw”) motion to remand (Dkt.
19) and motion to strike declarations of Defendant's
experts (Dkt. 39). The Court has considered the pleadings
filed in support of and in opposition to the motions and the
remainder of the file and hereby rules as follows:
March 13, 2014, McGraw was involved in a car accident. Dkt.
1, Ex. A (“Comp.”) ¶ 1.8. McGraw's car
was damaged, and the repairs cost $8, 140.07. Id.
McGraw's car was worth less after it was repaired than
before the accident. Id. ¶ 1.10. McGraw had a
car insurance policy with Defendant GEICO General Insurance
Company (“GEICO”). Id. ¶ 1.9.
McGraw sought underinsured motorist coverage under her GEICO
policy. Id. GEICO did not compensate McGraw for her
car's diminished value. Id. ¶ 1.11.
April 17, 2015, McGraw filed a class action complaint against
GEICO in Pierce County Superior Court. See id.
McGraw claims that GEICO has continuously failed to pay its
policyholders' diminished value loss. Id. ¶
5.1. McGraw seeks to certify the following class:
All GEICO insureds with Washington policies issued in
Washington State, where the insureds' vehicle damages
were covered under Underinsured Motorist coverage, and
1. The repair estimates on the vehicle (including any
supplements) totaled at least $1, 000; and
2. The vehicle was no more than six years old (model year
plus five years) and had less than 90, 000 miles on it at the
time of the accident; and
3. The vehicle suffered structural (frame) damage and/or
deformed sheet metal and/or required body or paint work.
Excluded from the Class are (a) claims involving leased
vehicles or total losses, and (b) the assigned judge, the
judge's staff and family.
Id. ¶ 5.3. McGraw alleges that the number of
class members will be about 2, 586 and the average damages
will be about $1, 460 per class member. Id. ¶
2.4. Based on these numbers, McGraw alleges that the amount
in controversy is $3, 775, 560. See Id. McGraw
asserts a single breach of contract claim. Id.
20, 2015, GEICO removed the matter to this Court. McGraw
v. Geico Gen. Ins. Co., C15-5336BHS (W.D. Wash.)
(“McGraw I”). On September 8, 2015, the
Court granted McGraw's motion to remand because GEICO had
“failed to establish by a preponderance of the evidence
that CAFA's amount in controversy requirement is
satisfied in this case.” McGraw v. Geico Gen. Ins.
Co., C15-5336BHS, 2015 WL 5228027, at *4 (W.D. Wash.
Sept. 8, 2015). On the issue of attorneys' fees, the
Court rejected GEICO's argument that attorneys' fees
should be included in the amount in controversy under either
the Washington Consumer Protection Act or Insurance Fair
Conduct Act because neither of these claims was in
McGraw's complaint. Id.
October 13, 2016, GEICO removed the matter to this Court for
a second time. Dkt. 1. GEICO alleges that “[a] sampling
of GEICO's records reveals an average of $1, 698.99 per
claim with a potential class size including as many as 2734
claims for a total of $4, 645, 038.66 in potential class
member claims.” Id. ¶ 22. GEICO also
alleges that the class would be entitled to attorney's
fees under the Ninth Circuit benchmark for class actions,
McGraw's retainer agreement with her attorney, or
Olympic Steamship Co. v. Centennial Ins. Co., 117
Wn.2d 37 (1991) (en banc). Id. ¶¶ 23-25.
November 14, 2016, McGraw moved to remand. Dkt. 19. On
December 5, 2016, GEICO responded. Dkt. 25. On January 6,
2017, McGraw replied (Dkt. 37) and moved to strike the
declarations of GEICO's experts (Dkt. 39). On January 23,
2017, GEICO responded to ...